Salient provisions of the new Constitution

Excerpts from a report introducing the new Constitution of Vietnam presented by Vice Chairman of the National Assembly Uong Chu Luu at the national conference on the implementation of the Constitution held on January 8

On November 28, 2013, the Vietnamese National Assembly passed the Constitution of the Socialist Republic of Vietnam (the Constitution), marking an important milestone in the country’s constitutional history. With 11 chapters and 120 articles (one chapter and 27 articles fewer than the 1992 Constitution), the new Constitution creates solid political and legal foundations for advancing the comprehensive national renewal in the new period.

Below are major and new provisions of the Constitution.

Political regime

The Constitution basically reaffirms the nature and overall model of the political institutions already established under the 1992 Constitution, while more clearly, fully and profoundly defining the following issues:

It affirms the Socialist Republic of Vietnam is an independent and sovereign country enjoying unity and integrity of territory, including the mainland, islands, seas and airspace.

It further consistently reflects the underpinning viewpoint “all the state power belongs to the People and is based on the alliance between the working class and the peasantry and intelligentsia”, and adds a new important point that the Socialist Republic of Vietnam is a country where the People are masters.

Presidium of the National Conference for Implementation of the Amended Constitution__Photo: Nhan Sang/VNA

The Constitution stipulates that the Vietnamese state is in essence a socialist state ruled by law, of the people, by the people and for the people, but supplements and advances the principle “the state power is unified and delegated to state bodies that coordinate and control one another in the exercise of the legislative, executive and judicial powers.”This is the first time the principle of “power control” is constitutionalized, which has been expressed in Chapters V, VI, VII, VIII and IX of the Constitution and will be further institutionalized in relevant laws.

Also for the first time in the country’s constitutional history, the prescription “the People exercises the state power through direct democracy” is recognized and developed into a constitutional principle. Accordingly, the people may exercise the state power in the form of direct democracy or representative democracy through the National Assembly, People’s Councils and other state bodies, not only through the National Assembly and People’s Councils as stated in the 1992 Constitution. This principle has been consistently reflected in the entire Constitution, from the provisions on the political regime, human rights and citizens’ fundamental rights and obligations and state apparatus to those on constitutional revision.

The Constitution reaffirms and more clearly and fully spells out the nature and leading role of the Communist Party of Vietnam, stipulating that it is not only the vanguard of the working class but also the vanguard of the laboring people and Vietnamese nation, faithfully representing the interests of the working class, laboring people and entire nation, and acting upon the Marxist-Leninist doctrine and Ho Chi Minh Thought, and is the force leading the State and society. The Constitution additionally stipulates in Article 4 that the Party is closely connected to the people, serves the people, submits to their supervision and takes responsibility before them for its decisions. It asserts that all organizations and members of the Party shall operate within the framework of the Constitution and law.

The Constitution stipulates that all the nationalities are equal and unite with, respect and assist one another in mutual development; all acts of discrimination against and division of the nationalities are prohibited. The national language is Vietnamese. Every nationality has the right to use its own spoken and written language to preserve its own identity, and to promote its fine customs, practices, traditions and culture. The State implements a policy of comprehensive development and creates conditions for the minority nationalities

Regarding Vietnam’s foreign policy, the Constitution stipulates that Vietnam pursues the policy of independence, self-reliance, peace, friendship, cooperation and development; multilateralization and diversification of external relations, proactive and active international integration and cooperation on the basis of respect for each other’s independence, sovereignty and territorial integrity, non-interference in each other’s internal affairs, and equality and mutual benefit; abides by the Charter of the United Nations and international treaties to which the Socialist Republic of Vietnam is a contracting party; acts as a friend, a reliable partner and a responsible member of the international community for the national interest, and to contribute to the cause of peace, national independence, democracy and social progress in the world.

Human rights and citizens’ rights and obligations

Compared to the 1992 version, the Constitution has new important provisions on human rights and citizens’ fundamental rights and obligations.

It affirms that in Vietnam, human rights and citizens’ rights in the political, civil, economic, cultural and social fields are recognized, respected, protected and guaranteed in accordance with the Constitution and law.

The Constitution adds a principle on limitations on rights in conformity with international conventions on human rights to which Vietnam is a contracting party. This principles states that human rights and citizens’ rights may only be subject to limitations prescribed by law in case of necessity for national defense, national security, social order and safety, social morality and community health reasons.

It also reaffirms other principles of human rights and citizens’ fundamental rights and obligations that citizens’ rights are inseparable from citizens’ obligations; everyone is obliged to respect others’ rights; citizens are responsible for performing their obligations toward the State and society; and the exercise of human rights and citizens’ rights by a citizen must not infringe upon national interests and others’ rights and legitimate interests.

It further clarifies the contents of human rights and citizens’ fundamental rights and obligations in the political, civil, economic, social and cultural fields and responsibilities of the State and society in the respect for, guarantee and protection of human rights.

Particularly, the Constitution adds many rights that are the fruits of nearly 30 years of national renewal, namely the right to life, the right to donate ones’ tissues, organs and body, the right to inviolability of private life, the right to social security guarantee, the right to marriage and divorce, the right to enjoy and access cultural values, participate in cultural life, and use cultural facilities, determine his or her nationality, and the right to live in a clean environment. The recognition of these rights is entirely conformable with the international treaties to which Vietnam is a contracting party, reflecting the nation’s fuller awareness of human rights and asserting its strong commitments on the exercise of human rights.

The Constitution stipulates that human rights are natural rights of everyone, while citizens’ rights are the rights of persons holding Vietnamese citizenship. It is the responsibility of the State to promulgate laws and regulations to create favorable conditions for every person and every citizen to properly exercise their rights.

Economic, social and other affairs

Regarding the nature and model of the economy, the Constitution states that Vietnam builds an independent and self-reliant economy, bringing into full play the internal strength and international integration and cooperation in close association with cultural development, social progress and justice, environmental protection and national industrialization and modernization.

It reaffirms the important role of the State and state economy in orientating and regulating the development of the socialist-oriented market economy. Meanwhile, the role of enterprises and businesspeople is recognized for the first time in the Constitution. Enterprises of all economic sectors shall operate under the market mechanism. Business monopoly and all unequal mechanisms and policies must be abolished.

Regarding land administration and use, the Constitution adds the prescription “land use rights are protected by law” to express the respect for and protection by the State of land use rights and to create a firm legal basis for further preventing, combating and strictly handling violations in the enforcement of land law. To prevent rampant and arbitrary recovery of land, the Constitution stipulates that recovery of land for the implementation of socio-economic development projects for the purpose of national and public interests must be public and transparent and compensation must be paid for such recovery.

The state apparatus

The Constitution basically inherits the provisions of the 1992 Constitution on the state apparatus but presents them in a general manner.

It stipulates that the National Assembly is the highest representative body of the People and the highest state power body in the country. The National Assembly exercises the constitutional and legislative powers, decides on important issues of the country, and conducts the supreme oversight over activities of the State.

The Constitution vests in the National Assembly a new power to approve the appointment, relief from duty or dismissal of judges of the Supreme People’s Court, thus more clearly defining the role of the National Assembly in the relation with the judicial bodies and enhancing the role of judges in the spirit of judicial reform.

Another new power of the National Assembly is to oversee and regulate the organization and operation, and decide on members of the National Election Council, the State Audit Office of Vietnam and other bodies created by the National Assembly.

The National Assembly may also establish ad-hoc committees to study and inspect certain projects or investigate certain issues, and decide on the establishment and dissolution of its committees.

The Constitution more clearly and reasonably specifies types of treaties to be ratified and abrogated by the National Assembly, including those related to war, peace, national sovereignty, or membership status of the country in important international and regional organizations, and those concerning human rights and citizens’ fundamental rights and obligations.

The Constitution states that the Standing Committee of the National Assembly is the permanent body of the National Assembly, having the tasks of directing, regulating and coordinating activities of the Ethnic Council and the committees of the National Assembly.

The Committee has a new power to propose the National Assembly to elect, relieve from duty or remove from office the President, the Chairperson and Vice Chairpersons of the National Assembly, members of the Standing Committee of the National Assembly, the Chairperson of the Ethnic Council, chairpersons of the committees of the National Assembly, the Chairperson of the National Election Council, and the State Auditor General.

The Committee may also approve proposals on the appointment or relief from duty of ambassadors of the Socialist Republic of Vietnam.

The Constitution adds and more clearly defines the competence of the President to decide on the negotiation and conclusion of international treaties in the name of the State; to submit to the National Assembly for ratification or decide on the ratification and accession to international treaties according to his or her competence defined by the National Assembly.

Under the Constitution, the President assumes command of the people’s armed forces and holds the office of Chairperson of the National Defense and Security Council; decides on the conferement, promotion, demotion, or deprivation of ranks of generals, naval rear admirals, vice admirals, and admirals; and appoints, relieves from duty or dismisses the Chief of the General Staff, General Director of the Political General Department of the Vietnam People’s Army. As chairperson of the National Defense and Security Council, the President has the power to decide on the people’s armed forces’ participation in peacekeeping operations in the region and around the world.

In addition to the power to appoint, remove from office or dismiss judges of the Supreme People’s Court in pursuance to approval resolutions of the National Assembly, the President may also appoint, relieve from office and dismiss judges of other courts in line with the requirements of judicial reform.

The Constitution takes over the provisions of the 1992 Constitution regarding the role, functions, organizational structure and powers of the Government and makes a new provision that the Government exercises the executive power.

The Government also has a new competence to propose and formulate policies to be submitted to the National Assembly or the Standing Committee of the National Assembly for decision, and decide on policies according to its competence for the performance of its tasks and the exercise of its powers.

Ministers and heads of ministerial-level agencies must take personal responsibility before the Prime Minister, the Government and the National Assembly for the sectors and fields they are in charge of, and together with other members of the Government take the collective responsibility for activities of the Government. They shall report on their work to the Government and the Prime Minister, and make reports to the People on important issues under their management.

The Constitution stipulates that the People’s Courts exercise the judicial power, having the duty to safeguard justice, human rights, civic rights, the socialist regime, the interests of the State and the rights and legitimate interests of organizations and individuals.

To meet the requirements of judicial reform, the Constitution says that the adversarial principle is guaranteed in trials and the first-instance and appellate hearing system is guaranteed. It prohibits all agencies, organizations or individuals from interfering in trials conducted by judges and people’s assessors.

The Constitution reaffirms the People’s Procuracies exercise the power to prosecution and control over judicial activities.

When exercising the power to prosecution and control over judicial activities, a prosecutor observes law and submits to the direction by the chairperson of the People’s Procuracy.

Regarding administrative units, the Constitution regulates that the country is divided into provinces and centrally run cities; a province is divided into rural districts, towns and provincial cities; a centrally administered city is divided into urban districts, rural districts, towns and equivalent administrative units; a rural district is divided into communes and townships; a town or provincial city is divided into wards and communes; an urban district is divided into wards. Special administrative-economic units are established by the National Assembly.

Local administrations are organized in administrative units of Vietnam. consistent with the characteristics of rural areas, urban areas, islands and special administrative-economic units as prescribed by law.

Local administrations have the task and power to organize and ensure the implementation of the Constitution and law in their localities; decide on local issues in accordance with law; and submit to the examination and supervision by state agencies at higher levels. The tasks and powers of local administrations are determined on the basis of defining the powers between state agencies at central and local levels and of each level of local administration. Local administrations may be assigned to perform certain tasks of state agencies at higher levels along with necessary means to ensure the performance of those tasks.

The National Election Council and the State Audit Office are two new independent institutions created by the Constitution.

The National Election Council is tasked to organize the election of National Assembly deputies; direct and guide the election of deputies to People’s Councils at all levels.

The State Audit Office shall operate independently, abide by law only, and audit the management and use of public finance and assets.

Effect of and amendment to the Constitution

The Constitution is the fundamental and supreme law of the country. All other legal documents must conform to the Constitution.

Regarding its amending process, the Constitution stipulates that the President, the Standing Committee of the National Assembly, the Government or at least one-third of the total number of National Assembly deputies have the right to propose the making of, or amendment to, the Constitution. The National Assembly shall decide on the making of, or amendment to, the Constitution when at least two-thirds of the total number of National Assembly deputies vote for it.

The National Assembly shall establish the Constitution Drafting Committee, whose composition and number of members, tasks and powers must be decided by the National Assembly at the proposal of the Standing Committee of the National Assembly.

The Constitution Drafting Committee shall draft the Constitution, collect opinions of the People on it and submit it to the National Assembly.

The Constitution is passed when at least two-thirds of the total number of National Assembly deputies vote for it. The holding of a referendum on the Constitution may be decided by the National Assembly.-